Thousands of feds to benefit from high court's DOMA decision

Jun. 26, 2013 - 06:00AM
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The Supreme Court in a 5-4 ruling Wednesday struck down the Defense of Marriage Act, opening the door for thousands of same-sex spouses of federal employees to get medical coverage and an array of other federal benefits legally denied them up to now. (Tim Dillon / USA Today)

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The Supreme Court on Wednesday opened the door for thousands of same-sex spouses of federal employees to get medical coverage and an array of other federal benefits legally denied them up to now.

By a 5-4 ruling, the court struck down the Defense of Marriage Act (DOMA), the 1996 law that bars the government from recognizing gay and lesbian unions for purposes of providing benefits. The decision should have an immediate effect on same-sex spouses of federal employees in the District of Columbia and the dozen states that recognize gay marriage, said Brian Moulton, legal director of the Human Rights Campaign, a gay rights advocacy group.

Among other benefits, same-sex spouses will be eligible for medical coverage through the Federal Employees Health Benefits Program, dental and vision coverage, and survivor benefits from the government’s workers’ compensation and pension programs, Moulton said said in an interview before the decison was announced.

Exactly how many people could stand to gain is uncertain. An estimated 34,000 federal civilian employees are in same-sex relationships, a category that covers state-recognized marriages, civil unions or domestic partnerships, the Congressional Research Service said in a report this February. It’s not known how many of those live in D.C., New York, Maryland and the other 10 states where gay marriage is now recognized. In addition, the high court on Wednesday effectively affirmed a lower-court ruling that voided California’s ban on gay marriage, meaning that same-sex unions could soon resume there as well.

The outlook is murkier for same-sex couples who wed in states that recognize gay marriage but who now live in states that don’t, Moulton said. It will be up to the Office of Personnel Management to decide benefits eligibility for those couples. While not sure what OPM will do, “we will be urging them to recognize lawfully married couples no matter where they live,” Moulton said.

A potentially faster route would be for President Obama to use an executive order or presidential policy directive to make same-sex spouses eligible for federal benefits nationnwide, said John Mahoney, an attorney specializing in federal employment law. Despite DOMA, Obama had already extended some benefits — such as coverage of travel and relocation expenses — to same-sex partners on the ground that he had the authority to do so.

But because the laws authorizing federal benefit programs generally tie spousal eligibility to individual states’ definitions of marriage, such a presidential order or new OPM regulations would risk a lawsuit from members of Congress that could take years to permanently resolve, Mahoney said. It was congressional intervention, he noted, that forced the DOMA litigation to the Supreme Court after the Justice Department decided to stop defending the marriage act.

OPM will work with the Justice Department and other agencies to craft guidance “for federal human resources professionals, benefits officers and our employees and annuitants,” acting Director Elaine Kaplan said in an online statement that didn’t mention possible options. “While we recognize that our married gay and lesbian employees have already waited too long for this day, we ask for their continued patience as we take the steps necessary to review the Supreme Court’s decision and implement it.” A spokesman declined further comment.

Federal labor leaders were quick to embrace Wednesday’s decision. “This ruling is a victory of equality over exclusion, of fairness over fear, of compassion over contempt,” J. David Cox, president of the American Federation of Government Employees, said in a news release. Along with other labor groups, AFGE had submitted a friend-of-court brief urging the Supreme Court to strike down the law. Now that it has done so, “we expect the federal government to move swiftly in changing its rules and regulations to ensure that all federal employees are afforded the same rights and benefits,” Leisha Self, an AFGE legal rights attoney, said in the release.

The American Foreign Service Association, the union that represents State Department dipomats, had a similar message. State, the U.S. Agency for International Development and other foreign affairs agencies should move swiftly “to ensure full equality for all Foreign Service families, including health, pension and immigration rights,” Susan Johnson, the association’s president, said in a statement.